A Denver judge has ruled that a lawyer who is hearing impaired and was removed from a jury pool due to his disability can sue the Denver County Court for discrimination.
Denver District Court Judge Mark Bailey determined Saturday that a fellow judge didn’t follow the Americans with Disabilities Act or state rules for selecting jurors when she removed Spencer Kontnik from a jury pool, opening up the Denver County Court to a lawsuit.
“We’re really pleased about this. Now the case can continue,” said Kontnik attorney Kevin Williams. “We’re always open to talking about resolving a case if the defendant would like to do so, but given the judge’s order we think we’re in pretty good shape moving forward.”
The key facts of the case are not in dispute. Kontnik, an employment and disability law attorney with the firm Kontnik Cohen in Denver, uses an interpreter to hear in courtrooms. He reported for jury duty one day in July 2021, met the court-appointed interpreter and was told to wait outside the courtroom while the judge met with lawyers.
Inside the courtroom, Denver County Court Judge Judith Smith was handed an agreement by the prosecutor and defense attorney in the case. The two attorneys asked that Kontnik be removed from the jury pool “on the grounds that things might be tough for him.”
Smith agreed to exclude Kontnik from the jury. He then threatened to sue the Denver District Attorney’s Office and the Office of the Colorado State Public Defender but reached settlements with them that included training on the ADA for their staff and donations to the Deaf and Hard of Hearing Bar Association, among other nonprofit organizations.
Unable to reach an agreement with Denver County Court, he sued it on Sept. 9, 2022. On Oct. 18, the court asked that the lawsuit be thrown out. A hearing was held Jan. 25.
With the facts undisputed, the hearing centered on whether Kontnik can, under law, sue the court. Judges are immune from lawsuits that accuse them of making bad decisions. Williams, with the Colorado Cross-Disability Coalition, argued he was suing a court, not a judge.
“It really doesn’t make sense that this happened,” Kontnik’s attorney told Bailey. “And if it happens again — well, that’s what we’re trying to prevent.”
Assistant City Attorney Michele Horn, who is defending the county court, argued that Kontnik’s disability was accommodated when he was assigned an interpreter and that he can’t sue the judge or the court over a discretionary decision that was within her power.
“This case cannot be brought. The Denver County Court has immunity,” she said. “This is the exact case that judicial immunity was meant to cover — a discretionary decision by a judge.”
Bailey, the district court judge overseeing the case, disagreed with Horn. While judicial immunity prohibits Kontnik from seeking monetary damages, he can still seek a ruling that would force the county court to change its policies and ensure they’re in line with the ADA.
“The difficulty of this case arises from the fact that the judge — who is generally not answerable to her employer for her judicial acts — plays a role in granting or denying access to Colorado’s public jury system,” Bailey wrote. “As such, it is hard to pinpoint where — if anywhere — liability lies when a judge fails to follow the law governing access to jury duty.”
With that, he denied Denver County Court’s motion to dismiss the Kontnik case.
“We thought this was a pretty straightforward case going in,” Williams said Monday, “and we were very surprised to see this motion to dismiss in the first place.”
A spokeswoman for the City Attorney’s Office declined to comment on the ruling.